Opinion
1298 CA 19–00125
01-31-2020
SPINE SURGERY OF BUFFALO NIAGARA, Plaintiff–Appellant, v. GEICO CASUALTY COMPANY, Defendant–Respondent.
THE MORRIS LAW FIRM, P.C., BUFFALO (DANIEL K. MORRIS OF COUNSEL), FOR PLAINTIFF–APPELLANT. RIVKIN RADLER LLP, UNIONDALE (J'NAIA L. BOYD OF COUNSEL), FOR DEFENDANT–RESPONDENT.
THE MORRIS LAW FIRM, P.C., BUFFALO (DANIEL K. MORRIS OF COUNSEL), FOR PLAINTIFF–APPELLANT.
RIVKIN RADLER LLP, UNIONDALE (J'NAIA L. BOYD OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by providing that the complaint is dismissed without prejudice and as modified the order is affirmed without costs.
Memorandum: Plaintiff, as the assignee of certain claims for no-fault benefits, commenced this action asserting a single cause of action for prima facie tort and seeking, inter alia, punitive damages. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(7), and Supreme Court granted the motion. Plaintiff appeals. For the reasons set forth in our decision in Greater Buffalo Acc. & Injury Chiropractic, P.C. v. Geico Cas. Co., 175 A.D.3d 1100, 1101–1102, 107 N.Y.S.3d 599 (4th Dept. 2019) ), which involved an identical complaint against defendant, we conclude that the court properly granted defendant's motion, and we do not consider documents submitted by plaintiff that were not considered by the court in determining the motion (see id. ; Tuchrello v. Tuchrello , 233 A.D.2d 917, 918, 649 N.Y.S.2d 869 [4th Dept. 1996] ). Nevertheless, we agree with plaintiff that the dismissal of the complaint should have been without prejudice (see CPLR 205[a] ; Herrmann v. Bank of Am., N.A. , 170 A.D.3d 1438, 1442, 97 N.Y.S.3d 344 [3d Dept. 2019] ; Clark v. New York State Off. of Parks, Recreation & Historic Preserv. , 288 A.D.2d 934, 935, 732 N.Y.S.2d 200 [4th Dept. 2001] ), and we therefore modify the order accordingly.